ROBERTS Et Al. v. MULKEY Et Al.
343 Ga. App. 685
| Ga. Ct. App. | 2017Background
- On June 29, 2012, CCWA crew leader Henry Mulkey parked a mini-excavator partly in a lane on Hog Liver Road and piled excavated dirt on the road while repairing an underground water leak. No warning signs or cones were placed at the site.
- Mulkey later acknowledged he realized no warning signs had been deployed while the crew was finishing backfill.
- Tracey Roberts, driving eastbound at ~35 mph in clear weather at noon, hit the dirt pile and then the excavator; both she and her husband were injured.
- Roberts sued Mulkey (individual capacity) and Carroll County Water Authority (CCWA) for negligence; the trial court granted summary judgment to Mulkey on official immunity grounds and to CCWA on sovereign immunity grounds, and alternatively found Roberts was sole proximate cause.
- On appeal, Roberts challenged (1) official immunity for Mulkey, (2) sua sponte grant of sovereign immunity to CCWA when CCWA did not raise it, and (3) the finding that Roberts was sole proximate cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mulkey is protected by official immunity for failing to place warning signs | Mulkey’s failure to perform a ministerial duty (placing signs) is not protected by official immunity | Decision to deploy signs was discretionary absent a written policy or directive | Reversed as to Mulkey: factual evidence (supervisor’s repeated instructions) supports that placing signs was a ministerial act, precluding summary judgment on official immunity |
| Whether trial court could grant CCWA sovereign immunity when CCWA did not move on that ground | Roberts: CCWA did not raise sovereign immunity in motion; court erred to grant it sua sponte without notice | CCWA argued sovereign immunity barred suit | Vacated as to CCWA: court granted sovereign immunity sua sponte without giving Roberts notice/opportunity to respond; issue not properly decided on summary judgment |
| Whether defendants were entitled to summary judgment on merits because Roberts was sole proximate cause | Roberts: questions of fact exist about visibility, lack of warnings, and whether she could avoid collision | Defendants: obstruction was plainly visible; Roberts failed to keep a lookout and could have avoided it | Reversed: genuine issues of material fact remain on visibility, effect of shade/sun, and whether lack of warnings contributed to collision, so summary judgment on merits improper |
| Standard for distinguishing ministerial vs. discretionary acts in immunity context | Roberts: supervisor’s repeated directives and on‑the‑job practice rendered sign deployment ministerial | Defendants: absence of written policy made sign deployment discretionary judgment | Court: ministerial duty may be proved by unwritten policy or supervisor directives; evidence here could support ministerial characterization, so immunity not resolved on summary judgment |
Key Cases Cited
- Pearce v. Tucker, 299 Ga. 224 (explains official‑vs‑ministerial duty analysis and review of immunity issues)
- Gilbert v. Richardson, 264 Ga. 744 (official immunity: discretionary acts immune unless willful, wanton, or outside authority; no immunity for negligent ministerial acts)
- Common Cause/Georgia v. City of Atlanta, 279 Ga. 480 (defines ministerial vs. discretionary duties)
- Roper v. Greenway, 294 Ga. 112 (ministerial duty may be established by written/unwritten policy or supervisor directive)
- Glass v. Gates, 311 Ga. App. 563 (unwritten departmental policy can establish a ministerial duty for immunity purposes)
- McCray v. FedEx Ground Package System, 291 Ga. App. 317 (questions of negligence and proximate cause for jury except in plain, palpable, undisputed cases)
- Thomas v. Tenet Healthsystem GB, Inc., 340 Ga. App. 78 (trial court may grant summary judgment sua sponte only after giving party notice and opportunity to respond)